Opinion
Editorial

Trier of fact, evaluator of evidence, interpreter of law, ultimate punisher — a judge in Canada juggles many roles, with not a little discretion required to pull it off.

For that, we can all be thankful. An impartial judiciary, one with limited flexibility to tailor the law to individual cases, protects us all against unreasonable prosecution and excessive punishment. But when judges balk at laws Parliament has passed, as they increasingly are with the Harper government’s tough-on-crime legislation, we must ask whether the judiciary is crossing into the realm of political arbiter, a role it does not have.

The latest example comes from British Columbia, where a judge recently ruled a one-year mandatory minimum sentence for a repeat drug trafficker is unconstitutional, a violation of his right, under the Charter of Rights, against cruel and unusual punishment.

Across Canada, other examples:

n Judges chafing at mandatory new court surcharges, which help pay for victims’ programs, calling the fines cruel and unusual punishment for who can’t pay.

n In Ontario and elsewhere, in a case now before the Supreme Court of Canada, judges balking at another change by the Tory government that erodes judges’ discretion to give lower sentences by granting extra credit for time spent in pre-trial custody.

n New mandatory minimums for possessing a loaded prohibited gun — three years for a first offence, five years for a repeat offender — have triggered backlashes, with Ontario’s highest court last year throwing those out as unconstitutional.

In the recent B.C. drug case, the small-time dealer had 21 prior convictions, including a 2012 trafficking charge. As a repeat offender, under the new minimum, he should have got a year in jail. Instead, the judge gave him 191 days, saying his drug-dealing was to support his own habit, not unusual in Vancouver’s downtown east side.

The issues are more complex than tough-on-crime vs. hug-a-thug. Clearly, one-size-fits-all mandatory minimums also need a tweak, to discriminate between harmless offenders and those with violent intent. Still, what we’ve seen lately smacks of an activism found in no judge’s job description.